United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
matter comes before the court on the government's Motion
to Strike (Doc. 102) and Motion in Limine (Doc. 103). Mr.
Lindemuth did not respond to either motion. But, on November
14, 2017, the court held an In Limine Conference and both
parties presented oral argument on the motions. The court is
now ready to rule. For reasons explained below, the court
denies the government's motions.
Lindemuth has ongoing bankruptcy proceedings and, it appears,
his criminal charges stem from them. While in these
bankruptcy proceedings, his assets are controlled by the
bankruptcy Trustee. According to Mr. Lindemuth, the Trustee
will not release funds from his estate to help his efforts to
marshal his defense. Initially, Mr. Lindemuth believed the
Trustee would release some funds so that he could retain an
expert in bankruptcy law to serve as a putative expert
witness at trial. With that expectation, Mr. Lindemuth
located an expert in bankruptcy law who reportedly was
prepared to testify. But, when the deadline to provide notice
of expert witnesses arrived on October 24, 2017, the Trustee
still had not released funds needed to retain the expert. So,
Mr. Lindemuth filed a Designation of Expert Witness and Offer
of Proof (Doc. 100) with a Disclosure of Expert Testimony
(Doc. 100-1). But, this disclosure did not name the expected
expert because Mr. Lindemuth did not yet have the funds to
retain him. In his Disclosure of Expert Testimony, Mr.
Lindemuth disclosed the topics, generally, that the expert
witness was expected to address in his testimony.
the Trustee did not release funds for the expert witness so
Mr. Lindemuth could not retain him. Later, Neil Sader-a
bankruptcy attorney who previously had represented Mr.
Lindemuth in his bankruptcy proceedings-offered to testify as
an expert witness on a pro bono basis. Once Mr. Sader agreed
to do so, Mr. Lindemuth filed a Supplemental Designation of
Expert Witness (Doc. 107), and it named Mr. Sader as the
expert witness who would testify about the topics disclosed
in the Disclosure of Expert Testimony. Mr. Lindemuth filed
this supplement 17 days after the October 24 deadline for
serving notice of expert witnesses had passed.
the two motions and its presentation at oral argument, the
government aims three arguments at Mr. Lindemuth's
putative expert and the disclosure Mr. Lindemuth has made
about him. Those arguments are: (1) Mr. Lindemuth's
notice disclosing his expert was inadequate and untimely; (2)
Mr. Lindemuth's expert has a disqualifying conflict of
interest; and (3) Mr. Lindemuth's expert seeks to provide
improper expert legal testimony. For these reasons, the
government asks to strike Mr. Lindemuth's Designation of
Expert Witness and Offer of Proof and exclude any expert
legal testimony. The court addresses the government's
three arguments below.
Inadequate and Untimely Notice
government asserts that the court should strike Mr.
Lindemuth's Designation of Expert Witness and Offer of
Proof (Doc. 100) because it provides inadequate notice of Mr.
Lindemuth's expert. The government also asserts that the
court should exclude the expert's testimony because Mr.
Lindemuth's Supplemental Designation of Expert Witness
Rule of Criminal Procedure 16(b)(1)(C) provides, "The
defendant must, at the government's request, give to the
government a written summary of any [expert witness]
testimony that the defendant intends to use under Rules 702,
703, or 705 of the Federal Rules of Evidence as evidence at
trial. . . This summary must describe the witness's
opinions, the bases and reasons for those opinions, and the
witness's qualifications." Here, the court set the
deadline for expert witness disclosure as October 24, 2017.
Doc. 92 at 1.
government contends that Mr. Lindemuth's expert witness
disclosure is inadequate and untimely. The court will address
the adequacy issue first. "The primary purpose of Rules
16(b)(1)(B) and (C) is to prevent unfair surprise at trial
and to permit the government... to prepare rebuttal reports
and to prepare for cross-examination at trial."
United States v. Naegele, 468 F.Supp.2d 175, 176
(D.D.C. 2007). "As the Advisory Committee Note expressly
states, Rule 16(b)(1)(C) is 'intended to minimize
surprise that often results from unexpected expert testimony,
reduce the need for continuances, and to provide the opponent
with a fair opportunity to test the merit of the expert's
testimony through focused cross-examination.'"
Id. (quoting Advisory Committee Note to Fed. R.
Crim. P. 16). "The requirement that a written summary of
an expert's testimony must be provided 'is intended
to provide more complete pretrial preparation by the
requesting party.'" Id. (quoting Advisory
Committee Note). "Most important, a summary of the bases
of the expert's opinion must be provided."
Id. (quoting Advisory Committee Note) (internal
quotations and brackets omitted).
Lindemuth's Disclosure of Expert Testimony lacks the
requisite description of the expert's opinions and the
bases and reasons for them. Instead, the disclosure only
provides general subjects that the witness will discuss. This
disclosure does not permit the government to complete its
pretrial preparation properly. Mr. Lindemuth thus has failed
to meet the requirements established in Rule 16(b)(1)(C).
16(d)(2) of the Federal Rules of Criminal Procedure allows
the Court broad discretion in imposing sanctions on a party
who fails to comply with a discovery order." United
States v. Jensen, No. 1:12-CR-83 TS, 2014 WL 37353, at
*1 (D. Utah Jan. 6, 2014). It provides:
party fails to comply with this rule, the court may:
(A) order that party to permit the discovery or inspection;
specify its time, place, and manner; and prescribe other just
terms and conditions;
(B) grant a continuance;
(C) prohibit that party from introducing the undisclosed